A special education legal resource discussing case law, news, practical advocacy advice, and developments in state and federal laws, statutes and regulations. Postings include insight and sometimes humor from Charles P. Fox, a Chicago, Illinois attorney who is also a parent of child with special needs, and other guest authors. Email: [email protected]

December 19, 2017

The Not So Neutral Effect of the End of Net Neutrality On Our Schools

The current round of tax "overhaul" legislation and repeal of net neutrality rules will have wide ranging and mostly negative effective on students with disabilities. This blog is the first in a series of blogs on the effects of these legal changes on students and others with disabilities. On December 14, 2017, the Federal Communications Commission (FCC) voted to repeal an Obama-era regulation that ensured net neutrality. The Restoring Internet Freedom Order, which had been implemented in 2015 to prevent the blocking, throttling, or paid prioritization of content on the internet, was designed to ensure that use of the internet was a right and not a privilege. The effects of the net neutrality repeal have left many educators and advocates deeply concerned about its impact on education, both at the K-12 level as well as higher level education. Shockingly, the FCC itself appeared to have not weighed these considerations. Several senators noted by letter prior to the December 14th vote that the 210-page proposal from the FCC never even mentioned the word “student” or “students.”

For many years, educators have recognized the huge impact technology can play in education. At the risk of sounding overly dramatic, the internet is the great equalizer in American education. Cash strapped districts can literally access the world to obtain high-quality educational materials not otherwise available to students, leveling the playing field in under-resourced schools. Additionally, students with disabilities can access specialized curriculum modules to provide desperately needed services. Homebound students can attend their regular classes or plug into other online academies. Teachers can regularly collaborate with colleagues or experts throughout the world. Not surprisingly as with so many other areas of life, the well off school district will absorb the negative effects of the end of net neutrality and poor districts will have more limited access to needed online content.

Because it recognized the importance of technology in education, the expansion of broadband services had been a national goal under the Obama administration, particularly in rural areas that have experienced the so-called "digital divide," where access has been limited and costs are higher. Happily, the country has been making progress in narrowing this gap since President Obama in 2013 announced a five-year plan to bring high-speed broadband to 99% of the country’s public schools. Currently, 94% of schools meet the federal standards for federal connectivity. Additionally, 88% of schools report sufficient access to Wi-Fi, compared with just 25% in 2013. The cost of internet services has also decreased, from $22 per megabit per second in 2013 to $4.90 in 2016. Yet, work still needs to be done. Not surprisingly, 77% of schools that lack high-speed fiber connections are rural. Despite our progress, 6.5 million students are in schools not meeting this goal (compared to 40 million in 2013.) Educators fear that the repeal of net neutrality may further jeopardize these students.

Higher education is also likely to be affected by the repeal of net neutrality. In the fall of 2002, only 10% of students of higher learning participated in at least one online course. That percentage has grown to at least 30% of students in 2015 who take at least one online class. Video lectures and online resources could be curtailed at institutes of higher learning. Basic research could be compromised if fees are imposed to download materials.

Joseph South, the chief learning officer at the International Society for Technology in Education, and Eden Dahlstrom, the executive director of the New Media Consortium, wrote in The Chronicles of Higher Education, “Today, a college campus without robust and ubiquitous internet access is unthinkable. . . The internet, and interactions with internet-connected devices and applications, is part of the daily life of millions of college administrators, faculty and staff members and students. The internet enables communication, collaboration, research and transactional activities that permeate, if not define, campus life.”

Public libraries are another strong proponent of net neutrality. Given that roughly 70% of teachers assign homework that requires internet access, libraries must maintain their access for students who will be disadvantaged by lack of high speed access, including students from the 5 million households with school-age children without internet service. Yet, the American Library Association (ALA) fears that the costs for “paid prioritization” will be passed onto non-profits, such as libraries, that may be unable to assume the increased expense of high speed internet. The ALA has expressed concerns about the “demotion” of collaborative tools used by educators in favor of for-profit sites. According to the past present of the ALA, Barbara Stripling,“We must ensure the same quality access to online educational content as to entertainment and other commercial offerings, but without net neutrality, we are in danger of prioritizing Mickey Mouse and Jennifer Lawrence over William Shakespeare and Teddy Roosevelt. This may maximize profits for large content providers, but it minimizes education for all.”

Proponents of the new FCC deregulation argue that a “light touch” approach is preferable to micromanaging the internet. The FCC chairman, Ajit Pai, states, “my view is that the internet should be run by engineers and entrepreneurs, not lawyers and bureaucrats.“ Because internet providers will be required to be transparent about their practices and performance, consumers can “choose” the plan that best meets their needs. Keith Kruger, executive director of the Consortium for School Networking, isn’t buying that argument because it will place the burden on school districts to recognize bad practices and file a complaint. Additionally, 43% of school districts have only one available internet provider. “There’s no competition in many parts of the country,” according to Krueger, “It’s not like the market will solve that.”

The reaction to the repeal of net neutrality may be engendering both hysteria and hype. After all, AT&T, Comcast, and Verizon have promised not to block or throttle content. Yet, we simply don’t know what the long-term results will be, and we are suspicious of corporate America. As a result, there are already efforts to repeal the repeal. Senator Schumer hopes to overturn the FCC’s net neutrality repeal by applying the Congressional Review Act, which allows Congress to overturn agency rulings with majorities of the House and Senate. Though considered a long shot, given that several Republican lawmakers have objected to the repeal, it is not impossible. Additionally, Democratic attorneys general in several states are prepared to fight the repeal in court. Some advocacy groups urge fighting for state level laws to protect net neutrality.

We must not be silent to this argument. As succinctly expressed by Ann Myers and Jill Berkowicz in a blog in Education Week, “Our democracy finds its strength in information and transparency. Our future citizens, those who are our students today, need to learn how to differentiate between factual and researched sources and opinions and arguments. Net neutrality keeps opposing points of view in front of us . . . Our work to prepare students to understand this valuable and dangerous place called the Internet is important. If the information available is now accessible based upon the amount of money the provider is willing to pay, then the Internet will separate from being a place of democracy and become a place where money controls information. Our information, our schools, our country will be threatened. The loss of Net Neutrality threatens the very academic freedom we have fought for. We must pay attention and speak out.”